Wednesday, September 12, 2012

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.


ZALDY NUEZ vs. ELVIRA CRUZ-APAO
[A.M. No. CA-05-18-P.  April 12, 2005]

FACTS:

This is an administrative case for Dishonesty and Grave Misconduct against Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15th) Division, Court of Appeals (CA). The complaint arose out of respondent’s solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latter’s pending case in the CA, more particularly, CA-G.R. SP No. 73460 entitled “PAGCOR vs. Zaldy Nuez.”
Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case.
However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One Million Pesos (P1,000,000.00).
Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, “Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.”  Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by the person who was going to make the decision. Respondent even admonished complainant with the words “Wala tayo sa palengke iho! when the latter bargained for a lower amount.
Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead, in August of 2004, he sought the assistance of Imbestigador. The crew of the TV program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.
On 24 September 2004, complainant and respondent met for the first time in person at the 2nd Floor of Jollibee, Times Plaza Bldg., the place where the entrapment operation was later conducted.  Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law. During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to come out. Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed later. When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division where complainant case was pending. She also claimed that she will not get any part of the money unless the researcher decides to give her some.
Complainant, respondent and Siringan negotiated for almost one hour. Complainant and Siringan bargained for a lower price but respondent refused to accede.  When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters at United Nations Avenue for questioning. Respondent became hysterical as a commotion ensued inside the restaurant. She called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latter’s house. She tearfully confessed to Atty. Gepty that “she asked for money for a case and was entrapped by police officers and the media.” Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, “Wala lang ma’am, sinubukan ko lang baka makalusot.” Respondent claimed that she was ashamed of what she did and repented the same.  She also asked for Atty. Gepty’s forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such offenses.[
Atty. Gepty rendered a verbal report of her conversation with their division’s chairman, Justice Martin S. Villarama.  She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September 2004.

ISSUE:
            Whether or not text messages admitted would violate right to privacy of the accused.

HELD:

            No.  The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence which provides:

“Ephemeral electronic communication” refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained.”
Under Section 2, Rule 11 of the Rules on Electronic Evidence, “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . .” In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import.  Respondent herself admitted that the cellphone number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.
WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY.


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